Background Rules on Drafting Affidavits:
- Affidavits must be based on what the deponent saw, what they heard, or what they did.
- Affidavits must be written in the first person, state the full name of the deponent, and if the deponent is a party or a lawyer, officer, director, member or employee of a party.
- Affidavits should state only facts. They should not include legal argument. They should not include self-serving protestations of surprise, shock, or disgust.
- Affidavits must be divided into paragraphs, numbered consecutively, with each paragraph being confined to one statement of fact.
- The facts that should be included are the ones that establish the elements of the test. For example, if you are seeking to change the venue of a matter, include the facts relevant to the test that the judge must consider in making that decision.
- The affidavit should be concise and clear.
- Affidavits must be signed by the deponent and sworn before a commissioner or notary public. (see Rule 4.06 of the Rules of Civil Procedure)
Hearsay in affidavits:
- Rule 4.06(2) of the Rules of Civil Procedure states that affidavits are restricted to the facts within the deponent’s personal knowledge or to the evidence that the deponent could give if they were testifying as a witness in court.
- Hearsay may be included in affidavits in specific circumstances.
- An explanation of hearsay can be found at the BC Provincial Court Website.
- For example, on an interlocutory motion, a deponent may give evidence that a letter was sent by someone else and attach the letter as an exhibit.
- If hearsay is included, the deponent must include the identity of the source of the information and the grounds for the belief in its veracity. Rule 39.01(4) of the Rules of Civil Procedure states that: “An affidavit for use on a motion may contain statements of the deponent’s information and belief, if the source of the information and the fact of the belief are specified in the affidavit.”
- Hearsay in affidavits must be non-contentious (Gutierrez v. The Watchtower Bible and Tract Society of Canada et al., 2019 ONSC 3069).
- The word “contentious” means “likely to cause an argument; disputed, controversial” (Bilotta v. Booth, 2019 ONSC 5956).
- Affidavits should not include opinions, unless it is from an expert witness.
(Views are my own and do not represent the views of any organization. This is not intended to be legal advice, and is for educational purposes only. heatherdouglaslaw.com)